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Moore v. Madigan, key points

Judge Posner’s opinion for a 2-1 panel of the 7th Circuit. Illinois is the only state which forbids gun carrying in public as a matter of law. There is no provision for the issuance of licenses for concealed carry, or for open carry. Both are banned. There are some exceptions for particular activities (e.g., while hunting), and for persons with a special occupational status (e.g., licensed security guard, some government officials).

According to the Supreme Court, 1791 (year of ratification) is the crucial year for the Second Amendment’s original meaning. The usual suspects (Saul Cornell, etc.) claim that there was no generally recognized right to carry in 1791. But the “Supreme Court rejected the argument. The appellees ask us to repudiate the Court’s historical analysis. That we can’t do. Nor can we ignore the implication of the analysis that the constitutional right of armed self defense is broader than the right to have a gun in one’s home. . . .A right to bear arms thus implies a right to carry a loaded gun outside the home.”

“And one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Besides English precedents about restrictions on carrying in certain places or in certain ways were not general prohibitions. Discussion of frontier conditions, and observation that today,

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

Judge Posner then surveys the social science evidence about gun carrying, and concludes that it is, on net, indeterminate, and besides that, irrelevant:

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. . . . Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

The State cannot win the case by showing a mere rational basis for the law. Another 7th Circuit case, Skoien, upheld the federal gun ban for convicted domestic violence misdemeanants, and in doing so used intermediate scrutiny, and required the government to produce lots of empirical evidence. In the instant case, the government “would have to make a stronger showing” than in Skoien, since the Illinois carry ban applies to everyone, whereas Skoien involved “a class of persons who present a higher than average risk of misusing a gun.”

“Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home, [James] Bishop [Note, “Hidden or on the Hip: The Right(s) to Carry After Heller,” 97 Cornell L. Rev. 907 (2012)], supra, at 910; David B. Kopel, “The Second Amendment in the Nineteenth Century,” 1998 BYU L. Rev. 1359, 1432–33 (1998)—a more limited prohibition than Illinois’s, however.” Illinois offers no evidence why it has some unique need to ban gun carrying; if Illinois’s carry ban were such a great idea, then at least one or two states would have emulated it.

Reiterates Heller’s exceptions: “children, felons, illegal aliens, lunatics, and in sensitive places such as public schools.” Notes with approval that some states sensibly require that an applicant for a handgun permit establish his competence in handling firearms.

In Kachalsky v. Westchester County, the 2d Circuit recently upheld NY State licensing law that requires a carry permit applicant to prove that he suffers from some unique or unusual threat. Posner chides the 2d Circuit for re-opening historical issues that were settled by Heller. But “Our principal reservation about the Second Circuit ’s analysis.” Posner writes, “is its suggestion that the Second Amendment should have much greater scope inside the home than outside simply because other provisions of the Constitution have been held to make that distinction.” In support, the 2d Circuit cited Lawrence v. Texas. Posner replies: “Well of course—the interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home. But the interest in self-protection is as great outside as inside the home.”

Moreover, Posner writes, the main purpose of Kachalsky’s inside/outside distinction was to justify intermediate scrutiny for restrictions on guns outside the home. In Madigan, “our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states.” [Study tip for law students: 3-tier scrutiny doesn’t explain everything. If a government prohibited everyone from speaking out loud in public places, a court does not need to use strict or intermediate scrutiny to decide if the ban is constitutional. Blanket bans on speaking in public places are per se void, and so are blanket bans on bearing arms in public places.]

Judge Posner addresses the concern of 4th Circuit Judge Harvie Wilkinson [US v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)] that delineating the constitutional boundaries of the right to bear arms takes judges into “a vast terra incognita.” Posner agrees, but points out that the new world “has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts.”

The Illinois carry ban is illegal. The Court’s mandate will be stayed for 180 days, “to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.”